State v. Thomas
| Decision Date | 21 December 1889 |
| Citation | 12 S.W. 643,99 Mo. 235 |
| Parties | The State v. Thomas, Appellant |
| Court | Missouri Supreme Court |
Appeal from the Saline Criminal Court. -- Hon. John E. Ryland Judge.
Reversed and remanded.
J. P Strother and Davis & Wingfield for appellant.
(1) The indictment is wholly insufficient. It fails to charge the homicidal act, itself, was done feloniously, etc. State v. Herrell, 97 Mo. 107. See also State v Sundheimer, 93 Mo. 313. (2) The court erred in giving state's instruction number 1, in defining malice, and in not discriminating between the counts of indictment. Also in giving state's instruction number 4, in that it allows the jury to consider "facts and circumstances as detailed in the trial of this cause;" thereby authorizing them to consider other than sworn testimony. It does not confine them to the evidence. (3) The court erred in number 5, by telling the jury that, if they have a reasonable doubt of defendant being present when and where the crime was committed, they should acquit, virtually tells them the converse of that -- that, if they have not a reasonable doubt thereof, then they should convict -- whether they believe he did or helped to do the killing or not. (4) The court erred in refusing instruction 9, asked by defendant; for it is unquestionably the law, and a proper and necessary qualification or amplification of the fourth, given for state. See instruction in State v. Jackson, 95 Mo. 658, and remarks of court thereon. (5) The court ought to have instructed jury as to necessity for corroboration of extra-judicial confession. State v. Brooks, 92 Mo. 595; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; Craft v. State, 3 Kansas, 450. (6) The court erred in admitting the so-called written statement of witness, Leta Thomas, before the grand jury. Under our statute the rule is absolute, sworn secrecy. See last clause of oath, Revised Statutes, 1879, section 1775. To this there are but two exceptions: (a) They may be required to testify "whether the testimony of a witness examined before such jury is consistent with, or different from," the evidence given by such witness before such court, and (b) upon complaint or trial for perjury. Under the decision in Tindle v. Nichols, 20 Mo. 326, it is only in case, and in the manner, pointed out in section 1791, that they can testify at all; for this section corresponds to section 15 referred to by the court in that case. Beam v. Link, 27 Mo. 281. (6) Again, the law does not require minutes of evidence taken before a grand jury to be signed by witness. R. S. 1879, sec. 1780. She had been unlawfully required to sign this "minute of evidence," and then it was unlawfully used in evidence to discredit her, and to help convict her brother of capital crime. (7) The evidence of the finding of a bloody handkerchief by Charley Adams was wholly irrelevant, and mischievous beyond calculation. There was absolutely no evidence -- not even circumstantial -- connecting defendant with this handkerchief. So of testimony of Binghaman, as to drawers and overalls. (8) The evidence was insufficient to convict. The so-called confession was not reasonable, or probable, and insufficiently corrobated. Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526; State v. Patterson, 73 Mo. 695; State v. Dickson, 78 Mo. 438; State v. Castor, 93 Mo. 243.
John M. Wood, Attorney General, and A. F. Rector, Prosecuting Attorney, for the State.
(1) The objection to the testimony of James H. Binghaman, who testified that, in the summer of 1886, he lived upon the premises where Lowry was killed, and that, "while cutting brush north of the creek, he found a pair of overalls and drawers," and describing them, is without merit, and the testimony competent; the clothing was found in sight of the Thomas residence, and right on the route defendant would likely take from the place of the killing to his own home. It was a circumstance to be considered in the case by the jury, and was properly admitted. (2) The objection to testimony of Charley Adams to the finding of a bloody handkerchief north of the Lowry place soon after the murder was competent. (3) The objection to the reading in evidence the statement of Leta Thomas, signed by her, as made before the grand jury at September term, 1887, is not well taken. Leta Thomas having testified in behalf of the defendant, on cross-examination, stated that she testified before the grand jury in September, 1887; her statement made upon that occasion was written down at the time and signed by her; on the trial of this cause it was shown her, and she admitted that she had signed the same, and, after showing that she had made the statement, it was read to the jury for the purpose of contradicting her. This was proper and competent. State v. Matthews, 88 Mo. 121, and cases cited.
-- At the March term, 1888, of the criminal court of Saline county, the defendant was indicted for murder in the first degree. The indictment, in two counts, charges him with having murdered John Lowry on the eleventh of October, 1884, in said county. He was arraigned, plead not guilty, and the case was continued until the September term, when it was set down for trial on the second day of January, 1889, at which time he was tried, found guilty of murder in the first degree, and sentenced to be hanged. His motion for new trial, and in arrest of judgment, having been overruled, he appeals, the circuit court staying the execution until his appeal be heard.
So far as the personal knowledge of any of the witnesses who testified in this cause goes, the last time that John Lowry was certainly seen alive, was on the evening of Saturday the eleventh of October, 1884, when "the sun was about a half an hour high." The evening was "dark and rainy;" he was in his pasture driving a cow, and had on a "gum coat and overalls." About sunset of the same day, or, a little before, a man was seen standing in the front door of Lowry's house, whom one of the witnesses supposed to be Lowry, but, as he was at a distance, and the view obstructed by trees, it may, or may not, have been he. On Monday, the thirteenth of October, the mother and sister of John Lowry's wife, about two o'clock in the afternoon, went to Lowry's house. They found a cow in the house, in the east room used as a dining room and kitchen, the table was set, chairs around it, the dishes indicating that a meal had been eaten. On the window sill there was a coal oil lamp, the oil consumed, the light gone out. In the adjoining room, on the bed, freshly ironed clothes were found lying. No living soul was found. The daughter went to the door, hallooed two or three times, when Lowry's bird dog came to them. "He acted strangely, went to the door and looked back, went down the steps and looked back again, ran to the fence, hopped over, and waited." The daughter followed him, to the dead body of John Lowry clothed in a gum coat and overalls, about one hundred and fifty yards northwest of the house, and about twenty or thirty feet northwest of the barn, lying on his breast, with his skull crushed in on the right side, just above the ear, and above a puncture as if made with a blunt instrument, and "two small cuts on the left side of his neck," his hat lying, also punctured, eight or ten feet southeast of him.
The alarm was given, some neighbors came, and, soon afterwards, the body of John Lowry's wife was found dead, behind an old hen house about fifty or sixty feet north of the house, her head crushed, the back of the skull split open as if with a sharp wedge-shaped instrument, after the body had fallen; decomposition had set in when the bodies were discovered, and the physician, who examined them soon after their discovery on Monday, expressed the opinion that "the wounds on both Mrs. Lowry and John Lowry were made on the Saturday evening before." He testifies that he formed this opinion from the condition of the wounds and the circumstances surrounding the case at the time, the bodies having been rained on since they had fallen, and there having no rain fallen after Saturday night. Another witness testified:
The other evidence tended to show that it commenced raining Saturday evening between two and three o'clock, continued in showers, until after dark, probably until about eight o'clock, when it ceased, and did not rain any more until after the bodies were found. The whole evidence tends to show that John Lowry and his wife were murdered between sundown and eight or nine o'clock Saturday evening, October 11, 1884.
At the time of the murder, Lowry and his wife were living alone in their little two-roomed house. About fifty yards south of their house, was a public road running east and west. North and east of the house, and near along by the barn, ran Straddle creek. Southeast from the barn, it crossed the public road west of and between Lowry's premises and a neighbor by the name of Wm. J. Adams, whose home was east of the creek, and of Lowry's, about a quarter of a mile. Northeast of Lowry's house, across the creek, and distant about three-fourths of a mile, was the home of John Thomas defendant's father. The defendant, then a youth between nineteen and twenty years of age, was living with his father, mother, two brothers...
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